Nase v. State , 1997 Fla. App. LEXIS 12710 ( 1997 )

CAMPBELL, Judge.

Appellant was convicted after a jury trial of attempted handling and fondling.of a child under sixteen years of age and was sentenced to four years’ probation and, as a special condition of that probation, to sixteen months’ incarceration. On appeal, he argues that the trial court erred because his sentence exceeds the five-year maximum sentence for the offense for which he was convicted. We agree.

The State concedes that a probationary split sentence cannot exceed the statutory maximum for the offense, which in this case is five years. See Randolph v. State, 626 So.2d 1006 (Fla. 2d DCA 1993). Moreover, section 948.03(6), Florida Statutes (1995), provides that a court may not impose more than 364 days of incarceration as a special condition of probation. See Randolph, 626 So.2d 1006; Marin v. State, 624 So.2d 808 (Fla. 3d DCA 1993).

Accordingly, we affirm appellant’s conviction, reverse his sentence, and remand for resentencing.

PARKER, C.J., and THREADGILL, J., concur.